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Beware: a bonfire of our rights is planned

The task facing the trade unions is enormous, as not only are the employers cutting wages and jobs, the Tories are attempting to violate international law to severely limit workplace organisation, warn PROFESSOR KEITH EWING and LORD JOHN HENDY KC

THE trade unions are all that stand between the working class and catastrophe. Inflation is going through the roof. Businesses facing unmanageable increases in costs are already closing and shedding jobs.  

For workers the value of wages, having been stagnant for 12 years, is now falling. Offers of wage increases which are less than the rate of inflation are, in effect, wage cuts.  

Unions are fighting back. But unions are only able to negotiate in companies where they have collective bargaining rights. Collective bargaining used to cover 85 per cent of workers.  

But successive government policies since the 1980s have driven that coverage down to less than 25 per cent of workers. And many of those are not in a strong enough position industrially to demand a wage increase.  

Many others in the public sector have the benefit of collective bargaining but not about wages — because their wages are fixed by pay review bodies or government diktat.  

In consequence, most of our 30 million workers are entirely at the mercy of employers in setting wage increases.   

Yet even for that small percentage where their union is in a position to demand higher pay, the Liz Truss government intends to strip their bargaining power.  

The government intends to add to the “most restrictive laws on trade unions in the Western world” as Tony Blair described them in 1997.  

Since then, we have had the Trade Union Act 2016 with more restrictions on trade unions and picketing. This year, there has been already legislation against noisy pickets, the limit on damages payable by unions has been increased to £1 million for big unions, and agency labour to break strikes has been legitimised.  

Now Truss is considering the following:  

  • Use of emergency powers by a minister to outlaw any industrial action deemed to pose a “national emergency.”  

  • Increase in the current threshold percentage ballot turnout (in addition to a majority vote in favour).  

  • A yet higher threshold percentage of votes in favour than under the 2016 Act in “important public services” (i.e., the “key workers” who the government clapped during lockdown).  

  • Four weeks’ notice of industrial action to be given instead of two.  

  • A ballot authorising industrial action will be valid for only one occurrence of strike action within the current permitted six-month period.  

  • The six-month period reduced to three.  

  • A mandatory cooling off period of 60 days and a “dispute resolution process” after each strike action.

  • An absolute limit on the number of pickets permitted in the vicinity of “critical national infrastructure.”

  • Inflammatory and intimidatory language on picket lines prohibited.  

  • Ballot papers not only to identify the issues in dispute (as now), but also to set out the employer’s response by way of a right of reply.  

  • The tax authorities to collect tax on any strike pay by unions to their members.  

  • Employers will be entitled to short-circuit collective bargaining (where it exists) by making offers directly to union members.  

All these measures violate international laws ratified by and binding on Britain. The unions will fight these legal restrictions through Parliament and in many cases will sidestep them if passed. Many workers will probably ignore them and take unofficial action.  

But this is not the end of it. The new administration is apparently not content with income cuts for workers as a result of inflation and fuel price increases, nor with the further erosion of trade union rights, thereby weakening the power of workers to resist.   

We now also have a third threat, in the form of leaked proposals for a “bonfire of workers’ rights,” or at least what is left of them, since Britain is already the “lightest-regulated economy” in the developed world.  

In other words, British workers are already less well protected than their counterparts elsewhere. While the EU continues to develop plans for a minimum wage through collective bargaining, the new British government is about to trash what is left of the European legacy.   

Leaked reports have so far focused on the working time regulations. It is not clear yet how big the proposed bonfire of rights will be. But it does not have to be huge to be damaging.  

Take, for example, statutory holiday pay. This could be removed altogether, or the number of days cut, or the amount payable reduced.  

Or employers could be allowed to roll up holiday pay with ordinary pay so that the employer can say “we won’t pay you during holidays because we’ve already priced your holiday into your wages, and it’s up to you to make the necessary savings each week.”  

Just like the proposed restrictions on trade union rights, measures of this kind carry risks for the government if done — as was suggested in one report — in order to secure some competitive advantage for “Britannia unchained.”

The legally binding agreement Britain made with the EU at the time of Brexit contains a “non-regression” clause designed to stop the dilution of workers’ rights by the British government looking for cheap trading opportunities. Either the government is unaware of this provision, or it doesn’t care.  

Faced with these attacks, workers so far have mobilised in what has been a heroic struggle in defence of their incomes and their jobs.   

That seems set to continue as unions look at other measures to protect the working class: co-ordinating with each other to secure wage increases, linking up with campaigns and community groups, reinvigorating trades councils, establishing food kitchens in schools and elsewhere, and the possibilities of national days of action involving hundreds of thousands of union and non-union members.

All have come to realise that enough is enough. Beyond that, however, there will emerge a new political strategy alongside the campaign of resistance.   

That political strategy will be informed by the energy generated by the resistance and the expectations it creates. But in order to make change, it is necessary to win political power rather than scoff at it. 

And that change needs to be built on a trade union platform which emphasises the importance of the trade union role in what leading scholars refer to persuasively as our “economic constitution.”  

That economic constitution needs to be underpinned by a strong suite of trade union rights if the current threats to living standards and to our legal rights are to be addressed for the long term.   

It will require more than simply a Labour government as an alternative to the Tories, offering sticking-plaster solutions to contemporary problems.   

While Labour’s New Deal for Working People is a good starting point, more needs to be done to set in concrete the right to organise, the right to bargain collectively and the right to strike as the constitutional and permanent foundations of a progressive economy.

Keith Ewing is professor of public law at King’s College London and president of the Institute of Employment Rights —

Lord John Hendy KC is a trade union law specialist and president of the International Centre for Trade Union Rights —


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